Discussions surrounding the rights and social gains of women in Tunisia played an important part in the social and political ferment that accompanied the two years of travail, during which the terms of the new and ultimately-ratified Tunisian Constitution were crafted.
The Constitution of Tunisia's Second Republic served to end a struggle between two conflicting groups. On the one hand, there were those who said they were worried that the constitutional provisions might be the starting point for subsequent legislative revisions that would subvert the rights that Tunisian women had acquired under the 'First Republic'. On the other hand, others stood accused of trying to insert ideas that would have prevented the system of women's rights from evolving in Tunisia. They saw their opponents' proposals as an attempt to push the concept of women's rights in a direction that undermined the characteristics of Tunisian society and alienated it from its cultural environment.
Consensus between the two sides yielded constitutional provisions that had been shaped by the conflict, but that did not remain within its orbit. The outcome paves the way for an approach that protects the rights of women –a victory for the principle of citizenship and the principles of human rights– without ignoring the restrictions imposed by the cultural and religious characteristics of society. The approach blends the universal principles of human rights enshrined in international conventions with Arab-Islamic culture and its concept of the family.
Article 46 of the Constitution states: “the state is committed to protect the rights that women have gained, and to strengthen and develop them”, while Article 21 stipulates that “male and female citizens have equal rights and obligations and are equal before the law without discrimination”. These two articles, which are part of the chapter that covers rights and freedoms, deal with women's rights in conjunction with each other. Article 46 commits the state to the rights that women gained under the 'modern state', and says the state should not be satisfied with these gains but should endeavor to reinforce them. Article 21 explicitly enshrines the principle of gender equality relating to rights and obligations. This is done in a way that directly emphasizes developing women's rights in the context of preserving those they have already acquired – firstly by making them irreversible, and secondly by reinforcing them.
Civil Status Laws as a Product of Progress and an Integral Part of Tunisia's National Identity
The body of laws that enshrine the rights of women are among the most important achievements of the modernization process that began with the nation state in Tunisia. The Civil Status Code is one of the legislative texts that highlights most clearly the social and legal progress achieved by women. The Tunisian Civil Status Code sets out fundamental rights for women, most importantly by giving them the right to choose their spouse and by setting the minimum age for marriage at 18 (the age of majority).
The code regulates marriage, making it a civil procedure that is concluded by an official certificate, and that can only be dissolved by way of a judicial ruling. It also gives the woman the right to sue for divorce. The nationality laws give Tunisian women who marry foreigners the right to pass on their nationality to their children, and the labor laws stipulate equality between the genders in the workplace. Law no. 91 of 1998, dated November 9, 1998, sets out a system for joint property rights for couples. If the couple choose to use the system in the case of a divorce, law no.91 protects their rights to property acquired during the course of the marriage.
The social and legal turmoil that coincided with the process of drafting the constitution and that played a major role in shaping its provisions, showed that civil society and women's and human rights movements now see the rights of women as permanent gains that cannot be reversed under any pretext. The discourse of the parliamentary majority hailing from the political Islamist current with respect to the Civil Status Code had some positive aspects. The Islamist party Ennahda made a commitment to preserve the code and worked to develop it after judging it to be the outcome of legal reasoning. This commitment is in harmony with a spirit of 'centrism' and moderation in dealing with Islamic Law, and as such, it is not in conflict with the social project the party advocates.
In light of [such broad consensus], all branches of the government, including the derivative constituent authority that initiates constitutional amendments, have an obligation not to tamper with existing rights, other than to reinforce or develop them.
The new Constitution underpins acquired rights through a number of measures. For example, Article 65 stipulates that the Civil Status Code should have the same status as basic laws. Basic laws are distinct from other laws in that there are special procedures for handling them in the legislature. They can be passed only if approved by an absolute (two-third) majority of members – a requirement that makes it difficult to encroach on them.
Article 49 of the Constitution prohibits any amendment that would affect recognized human rights. This article entrusts the judiciary with protecting these rights from any infringement. In such a case, the constitutional court would be the monitoring authority that has a duty to protect the rights that women have gained.
Public awareness is likely to facilitate the task of protecting rights gained in this field. However, the constitutional principles that underpin those rights need further elaboration beyond their proclamation in public.
Reinforcing the Rights of Women: Pioneering Concepts and Clarifying Objectives
The opposition bloc in the National Constituent Assembly managed to impose the adoption of the concept of gender equality on the majority bloc. The latter dropped its initial opposition to the term in the course of compromises [stuck between the two groups]. As mentioned earlier, Article 21 of the Tunisian Constitution now endorses equality between the two sexes explicitly and unequivocally. The opposition group was also able to impose the idea of quotas for women in elected bodies, and render the state’s obligation to take measures to ensure the elimination of violence against women a constitutional one.
From this perspective, the provisions of the Constitution appear to be a giant step toward consolidating the rights of women. This is especially the case given that the principle of equality enshrined in the Constitution is complemented by positive discrimination in favor of women and by a desire to continue to protect those rights.
The protective dimension of the National Constituent Assembly’s deliberation is justified by social reality, whereby women continue to be a vulnerable and disadvantaged segment of society. In their tackling of women's rights, drafters of the constitution also openly addressed the concerns of a segment of Tunisian society that associates the idea of women's liberation with dissolution from social constraints. Article 7 specifies that the family is the basic unit of society and that the state has a duty to protect it. Opponents of the international conventions that protect women, specifically the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), argued that endorsing women’s rights undermines the family. Article 7 appears as an attempt to avoid such an interpretation. Tunisia ratified the CEDAW convention in 1985, and under the Constitution, CEDAW is now part of the 'acquired' rights that cannot be reversed.
The Constitution explicitly gives women the right to stand as candidates for presidency, thereby removing the ban enshrined in the 1959 Constitution on women assuming that office.
Alongside these provisions, the new Tunisian Constitution endorses in its preamble the tenets and objectives of Islam. This sets the stage for an important exception to the principle of equality, specifically, with regards to inheritance. By endorsing the Sharia provisions for inheritance, Tunisian law would seem to leave scope for future controversy over the limits and practical implications of equality.
The Constitution’s intent is equally ambiguous when dealing with the representation of women in elected assemblies. Article 34 says the state guarantees that women will be represented in elected assemblies, without attaching any specific ratio. Yet, Article 46 states that “the state will endeavor to bring about 50/50 representation for men and women in elected assemblies”. The clear inconsistency between the two articles on the same subject is likely to lead to confusion about the state's responsibility in this matter. The inconsistency arose because, whereas the opposition held firm to the idea of a 50/50 ratio as a distinctive feature of the inaugural parliamentary elections that should be retained, the majority did not accept the idea until after the draft Constitution was prepared. The formula was then inserted without reference to the previously agreed provisions.
The provisions set out in the Constitution of the Second Tunisian Republic show that there is a deep communal awareness of women's rights and roles in building democracy. The fact that laws passed by politicians under the First Republic have been transformed into permanent national principles, shows how important the laws are as a means to mold national identity and as an instrument to educate and cultivate society. Some provisions of the new Constitution seemed to veer away from its orientation towards developing those rights – which culminate in the principle of full equality. It is thus up to the legislative assemblies and the constitutional court to elaborate and interpret the concept of equality in a way that leads to its general acceptance, without rendering it devoid of the profound meaning of its content.
This article is an edited translation from Arabic.